ADJ12348581 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; WCJ's F&O rescinded; issues of permanent disability and attorneys' fees deferred; matter returned to trial level for further proceedings.

Petition for reconsideration of WCJ's Findings, Award and Orders dated October 8, 2024, granted; WCAB rescinded F&O and substituted new findings, deferring permanent disability and attorneys' fees for further development of the medical record on apportionment.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

ApportionmentRemandedcervical spine · lumbar spine

QME Dr. Sciaroni did not adequately explain how or why the percentages of permanent disability were apportioned to pre-existing congenital and non-industrial factors for the cervical and lumbar spine; further development of the record is required.

From the decision · page 11Because Dr. Sciaroni did not explain how or why she apportioned the percentages of permanent disability resulting from the injury to the cervical spine to pre-existing congenital stenosis and non-industrial causes, and because she did not explain how or why she apportioned the percentages of permanent disability resulting from injury to the lumbar spine to non-industrial degenerative changes and wearing a gun belt, we conclude that the record should be developed regarding the issue of apportionment of injury to the cervical and lumbar spine. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261] (finding that the Appeals Board has the discretionary authority to develop the record when appropriate to fully adjudicate the issues); see also Lab. Code § 5313.) Accordingly, we will amend the F&O to defer the issue of permanent disability so that the record on the issue of apportionment may be further developed. We will also defer the issue of attorneys' fees pending further development of the record as to permanent disability.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

QME Dr. Sciaroni did not explain how or why the percentages of permanent disability were apportioned to pre-existing and non-industrial factors for the cervical and lumbar spine.

Favours neutral

Lack of substantial evidence required remand for further development of the record on apportionment.

From the decision · page 11Because Dr. Sciaroni did not explain how or why she apportioned the percentages of permanent disability resulting from the injury to the cervical spine to pre-existing congenital stenosis and non-industrial causes, and because she did not explain how or why she apportioned the percentages of permanent disability resulting from injury to the lumbar spine to non-industrial degenerative changes and wearing a gun belt, we conclude that the record should be developed regarding the issue of apportionment of injury to the cervical and lumbar spine. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261] (finding that the Appeals Board has the discretionary authority to develop the record when appropriate to fully adjudicate the issues); see also Lab. Code § 5313.) Accordingly, we will amend the F&O to defer the issue of permanent disability so that the record on the issue of apportionment may be further developed. We will also defer the issue of attorneys' fees pending further development of the record as to permanent disability.

No evidence in the record to support grounds for terminating QME Dr. Sciaroni.

Favours Defendant prevailed

Request to replace QME denied; record to be developed by current QME per McDuffie.

From the decision · page 12Here, we concur with the WCJ that there is no evidence in the record to suggest that grounds exist to terminate QME Dr. Sciaroni and replace her with a new orthopedic QME. (Report, p. 4.)

Attorney misconduct issue was not raised for trial and was therefore waived.

Favours Defendant prevailed

Applicant's claim of attorney collusion was denied as procedurally barred.

From the decision · page 12Here, the issue of attorney misconduct was not raised for trial and was therefore waived. (Minutes of Hearing and Summary of Evidence, July 18, 2024, pp. 2:42-3:9; see U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469 [36 Cal.Comp.Cases 173]; Los Angeles Unified Sch. Dist. v Workers' Comp. Appeals Bd. (Henry) (2001) 66 Cal.Comp.Cases 1220 (writ den.); Hollingsworth v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 715 (writ den.).)

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERecord developed further

Initially apportioned 90% of cervical disability to pre-existing factors and 10% to industrial injury, later revised to 40% pre-existing and 60% industrial; for lumbar, apportioned 60% to nonindustrial factors (degenerative changes and prior work) and 40% to the specific industrial injury.

QME's apportionment opinions were found insufficiently explained and not substantial evidence, requiring further record development.

From the decision · page 11Because Dr. Sciaroni did not explain how or why she apportioned the percentages of permanent disability resulting from the injury to the cervical spine to pre-existing congenital stenosis and non-industrial causes, and because she did not explain how or why she apportioned the percentages of permanent disability resulting from injury to the lumbar spine to non-industrial degenerative changes and wearing a gun belt, we conclude that the record should be developed regarding the issue of apportionment of injury to the cervical and lumbar spine. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261] (finding that the Appeals Board has the discretionary authority to develop the record when appropriate to fully adjudicate the issues); see also Lab. Code § 5313.) Accordingly, we will amend the F&O to defer the issue of permanent disability so that the record on the issue of apportionment may be further developed. We will also defer the issue of attorneys' fees pending further development of the record as to permanent disability.

PTPPartially credited

Opined that the fall in March 2019 likely resulted in herniation at C5-6 and that the need for surgery was related to both the hernia from the injury and pre-existing congenital stenosis; employer more than 50% responsible.

QME Sciaroni referenced Khondrashov's opinion in revising apportionment, but ultimately did not base her change solely on Khondrashov's letter.

From the decision · page 3I then issued a supplemental report after reviewing documentation from Dr. Khondrashov stating that the fall 3/2019 likely resulted in herniation of right C5-6 and the need for surgery was related to combination of the hernia from the injury as well as pre-existing congenital stenosis. He opined that the employer was more than 50% responsible. I revisited the apportionment with regard to the cervical spine and apportioned 40% to pre-existing nonindustrial factors and 60% to the industrial injury of 3/13/2019.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Escobedo v. WCAB

A medical opinion on apportionment must be substantial evidence: framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning in support of its conclusions.

Applied to determine that QME Dr. Sciaroni's apportionment opinions were not substantial evidence, requiring further record development.

From the decision · page 10To be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. Furthermore, if a physician opines that a percentage of disability is caused by a degenerative disease, the physician must explain the nature of the disease and how and why it is causing disability at the time of the evaluation. (Id.)

Preferred procedure to develop the medical record is supplementation by the physician who has already reported; replacement only if the need for development cannot be met.

Applied to deny applicant's request to replace QME Dr. Sciaroni and to direct further development of the record by the current QME.

From the decision · page 11We observe that the preferred procedure to develop the medical record is to allow supplementation by the physician who has already reported in the case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) Hence the proper method to develop the record here is for the parties to return to QME Dr. Sciaroni; and, per McDuffie, if the need for development of the record still cannot be met, the parties should consider selection of an agreed medical evaluator (AME). If the parties cannot

ADJ12348581 · January 3, 2025

What the panel ordered

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The facts that decided it

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